Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga
County Prosecutor Diane Smilanick Assistant County
ATTORNEYS FOR APPELLEE Mark Stanton Cuyahoga County Public
Defender Paul Kuzmins Assistant Public Defender.
BEFORE: Blackmon, J., Keough, A.J., and E.T. Gallagher, J.
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, J.
The state of Ohio appeals from the trial court's order
granting an application to seal the record of conviction
filed by appellee T.S. ("T.S."). The state assigns
the following error for our review:
The trial court errs in granting a motion to seal the record
of conviction when it is without jurisdiction to grant an
expungement to an applicant who was convicted of a crime in
which the victim of the offense was under eighteen years of
age, which is not permitted pursuant to R.C. 2953.36(F).
Having reviewed the record and pertinent law, we reverse and
remand for further proceedings consistent with this opinion.
The apposite facts follow. At the outset, we point out that
if anyone deserved to have a record expunged, it is T.S.
On April 4, 2008, T.S. was indicted for drug possession, two
counts of drug trafficking, and possession of criminal tools,
all with forfeiture specifications, and three counts of
endangering children. On June 16, 2008, she pled guilty to
drug possession, possession of criminal tools, and the
forfeiture specifications for these charges. She also pled
guilty to one count of endangering children in violation of
R.C. 2919.22(A), a first-degree misdemeanor, alleging that
the child who is the subject of the offense was born in 2003.
T.S. was sentenced to two years of community control
sanctions that required her to perform community service,
submit to drug tests, and obtain employment.
On July 2, 2014, several years after completing her community
control sanctions, T.S. filed a motion to seal the record of
her conviction. The state filed a brief in opposition to the
motion, arguing, inter alia, that under R.C. 2953.36, the
trial court was without jurisdiction to seal the conviction
for child endangering because the victim of the offense was
under 18 years of age. The trial court held a hearing on the
matter on January 15, 2015. The record indicates that no
prosecuting attorney appeared on behalf of the state, and
after the conclusion of the hearing, the trial court granted
T.S.'s motion to seal her conviction.
The state assigns a single error for our review, and
maintains that T.S. is not eligible for expungement due to
her conviction for child endangering. In opposition, T.S.
argues that her conviction under R.C. 2919.22(A) is not an
offense of violence, in contrast to convictions under R.C.
2919.22(B), and that at the hearing, no evidence was
presented to demonstrate that the offense actually involved a
In State v. AS, 8th Dist. Cuyahoga No. 100358,
2014-Ohio-2187, this court explained the standard of review
of a ruling on a motion to seal a record of conviction as
Generally, a trial court's decision to grant or deny a
motion to seal records filed pursuant to R.C. 2953.52 is
reviewed for an abuse of discretion. State v. C.K.,
8th Dist. Cuyahoga No. 99886, 2013-Ohio-5135, ¶ 10,
citing In re Fuller, 10th Dist. Franklin No.
11AP-579, 2011-Ohio-6673, ¶ 7. However, the
applicability of R.C. 2953.36 to an applicant's
conviction is a question of law that this court reviews de
novo. State v. M.R., 8th Dist. Cuyahoga No. ...